Indiana Natural And Illuminating Gas Company v. Marshall

• Decision Date: 20 December 1898
• Docket Number: 2,524
• Citation: 52 N.E. 232,22 Ind.App. 121
• Parties: INDIANA NATURAL AND ILLUMINATING GAS COMPANY v. MARSHALL
• Court: Indiana Appellate Court

52 N.E. 232

22 Ind.App. 121

INDIANA NATURAL AND ILLUMINATING GAS COMPANY v. MARSHALL

No. 2,524

Court of Appeals of Indiana

December 20, 1898

Rehearing denied March 29, 1899.

From the Clinton Circuit Court.

Reversed.

John C Farber, for appellant.

Palmer & Palmer, for appellee.

ROBINSON J. Henley, J., absent.

OPINION

ROBINSON, J.

Appellant appeals from a judgment awarding damages for personal injuries sustained by appellee. The errors assigned call in question the overruling of the demurrer to the complaint, the overruling of appellant's motions for judgment on the interrogatories notwithstanding the general verdict, for a venire de novo, for a new trial, and in arrest of judgment.

The complaint alleges that on and since March 1, 1896, appellant has operated an electric light plant in the city of Frankfort, Indiana; that on said date appellee entered the employ of appellant as a "trimmer"; that his duties were to visit appellant's lamps each day, examine them, and see that they were in proper condition, to replace carbon in lamps when necessary, and to inspect said lamps once each hour when lighted, to see that they were burning properly, and, if any lamp was found not in proper condition, to report that fact to appellant's electrician; that appellee continued in such employ until the 23rd day of July, 1896, when appellant was putting up a new wire which required adjusting at the top of a pole extending twenty-five feet above ground; that appellee was ordered and required by one George B. Marshall, who was appellant's agent and electrician, and whose duty it was in part to maintain the poles and wires in proper condition, to climb said pole to adjust said wire; that such work was no part of his duty as trimmer, and no part of the duties for which he was employed, and that it was more dangerous and unsafe than such duties, and that he was inexperienced in climbing electric light poles, and in the proper construction of spurs for use in such climbing; that said pole was planted in a leaning position, and extended upward through the limbs of a tree, which limbs were so around and about said pole as to compel him to climb upon the under side thereof; that appellant furnished appellee spurs to attach to his feet with which to climb said pole by striking said spurs into said pole; that said George B. Marshall was authorized to command all employes except one Harry Natcher, who was superintendent, and that said Natcher had notified appellee to obey the orders of said Marshall; that the spurs so furnished by appellant were defectively constructed in that the parts intended to be stuck into the pole by the wearer in climbing were set at an angle of forty-five degrees with the body of iron strapped to the wearer's leg, when it should have been at an angle of five degrees only; that they were constructed of soft metal, so that the points would bend under a man's weight thus making the angle greater, and causing the spurs to loosen from the pole; that in obedience to said orders he climbed said pole, using said spurs, and when about twenty feet from the ground the spurs lost their hold, and appellee fell, causing injuries which are described, and which are alleged to be permanent.

It is further averred that appellee fell because the pole was leaning, and the spurs were defectively constructed, which fact appellant knew; that appellee did not know the spurs were defectively constructed, and did not know it was more hazardous to climb a leaning pole than one standing upright; that the duties of trimmer were not hazardous or dangerous, and that climbing poles and adjusting wires thereon is especially so to persons unaccustomed to such work; that appellant knew appellee was unaccustomed to climbing poles and adjusting wires; that said injury resulted from the wrongful conduct of appellant in permitting said pole to remain in a leaning position surrounded by the limbs of a tree and in requiring appellee to use said defectively constructed spurs, and that said injury was without fault or negligence on appellee's part.

It is argued by appellant's counsel that, while the complaint avers generally that appellant knew that the spurs were defectively constructed, and that appellee did not not know that fact, it does not aver that appellee did not know of the defect and had not equal means of knowing with appellant. This is not a case where a proper appliance was furnished, which afterwards became defective while being used by the servant, but the appliance was defective when first furnished, and of such defect appellant is chargeable with knowledge. The duty of inspection does not lie equally upon the servant and the master, because the servant has the right to rely upon the master doing his duty in the furnishing of safe appliances, unless the defect is such that an ordinarily prudent person would observe it. The complaint alleges that the spurs were not only set at a wrong angle, but that the material was soft, and would bend under a man's weight. In such case the master undertakes that the appliance is fit for the use to which it is to be put, so far as ordinary care and prudence can discover. Baltimore, etc., R. Co. v. Amos, 20 Ind.App. 378, 49 N.E. 854. Thus in Louisville, etc., R. Co. v. Buck, 116 Ind. 566, 19 N.E. 453, the court said: "While the employer may expect that an employe will be vigilant to observe, and that he will be on the alert to avoid all known and obvious perils, even though they may arise from defective tools and machinery, * * * yet the latter is not bound to search for defects or inspect the appliances furnished him to see whether or not there are latent imperfections in or about them which render their use more hazardous. These are duties of the master, and unless the defects are such as to be obvious to any one giving attention to the duties of the occasion, the employe has a right to assume that the employer has performed his duty in respect to the implements and machinery furnished. Bradbury v. Goodwin, 108 Ind. 286, 9 N.E. 302; Little Rock, etc., R. Co. v. Leverett, 48 Ark. 333, 3 S.W. 50; Ft. Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133; Hughes v. Winona, etc., R. Co., 27 Minn. 137, 6 N.W. 553; Woods Master and Servant, section 376." And in Cincinnati, etc., R. Co. v. McMullen. 117 Ind. 439, 20 N.E. 287, it is said: "An employe is required to observe and avoid all known or obvious perils, even though they may arise from defective machinery and appliances; but he is not bound to search for defects, or make a critical inspection of the appliances which are provided for his use. These are duties of the employer." Pittsburgh, etc., R. Co. v. Woodward, 9 Ind.App. 169, 36 N.E. 442. It is true as argued by counsel, that if the leaning pole was dangerous, it was a danger open and obvious, and appellee had equal means with appellant of knowing such danger. But it is alleged that the injury resulted from the leaning pole and from the defective spurs. It is also alleged that the spurs were defectively constructed, and that this fact was known to appellant, but was not known to appellee. It is further averred that appellee was inexperienced in climbing electric light poles, and that appellant knew that appellee was unaccustomed to the climbing of poles and adjusting wires thereon. It might be that the defectively constructed spurs would suggest to a person experienced in their use that it would be unsafe to use them, but we cannot say that the defects as described in the complaint were such as would suggest themselves to an inexperienced person about to use them. A defect in the construction of a tool might be obvious to a person experienced in its use, and to one inexperienced it might appear to be properly constructed, and especially is this true of an appliance whose defects are of the nature described in the complaint. It must be borne in mind that the complaint shows appellee was not required to use them in the work which he was regularly employed to do, but that, when injured, he was engaged in work different from his regular employment, and work to which he was unaccustomed. His implied assumption of the risks incident to the particular work he is employed to do does not extend to more hazardous work outside of his contract of hiring, unless he voluntarily goes into such hazardous work. Pittsburgh, etc., R. Co. v. Adams, 105 Ind. 151, 5 N.E. 187.

Appellant's counsel has cited a number of cases to the effect that, where the apparent danger is such that a person of ordinary prudence, exercising that prudence, would refuse to encounter it, he proceeds at his peril, although ordered to do work out of the line of his...